Dhule District Supervision v. Nilkant Yadav Borase

Judgment

#2. Nilkant Yadav Borase, R/o Ganpati Mandir, Sindkheda, Tal. Sindkheda, Dist. Dhule. Deputy Commissioner of Labour, Nashik Division-cum-Appellate Authority, under the Payment of Gratuity Act, Vani Road, Patil Circle, Ganjmal, Nashik City, Nashik.

#3. Assistant Commissioner of Labour, Vivekanand Nagar, Jalgaon. ..... RESPONDENTS

Mr. N.B. Suryawanshi, advocate for the petitioner. Mr. N.L. Choudhari, advocate for respondent No. 1. Mr. D.V. Tele, AGP for respondents/State. ..... ( 2 ) [CORAM : V.R. KINGAONKAR, J.] [DATE : 9th June, 2009] ORAL JUDGEMENT :

#1. By this petition, the petitioner impugns judgement rendered by the Assistant Commissioner of Labour, Nashik, the appellate authority, in appeal No. 10/2000, whereby the claim for gratuity was allowed in favour of the respondent No.1.

#2. There is no dispute about the fact that the respondent No. 1 was employed as Secretary at various village level co-operative societies. There is also no dispute about the fact that while the respondent No. 1 was working as Secretary of the co-operative society at Sindkheda, he came to be suspended due to alleged misappropriation committed by him. He was subjected to departmental inquiry. It appears that criminal cases were also instituted against him. He was reinstated in ( 3 ) service on 22nd June, 1980 by revoking the suspension. He again was found to have indulged in certain misappropriation. On 20th January, 1992, he was again suspended from service. A show-cause notice was issued to him and departmental inquiry was instituted against him. His services were terminated on 6th April, 1993. The Managing Committee, however, resolved on 26th May, 1994 that his earlier absence from the duty would be treated as leave without salary and further that the reinstatement would be subject to his acquittal by the criminal Court. The respondent No. 1 retired on 30th June, 1998 on account of superannuation. He claimed gratuity amount from the petitioner. There was dispute as regards his right to claim the gratuity in view of the conditional order of reinstatement. The concerned Assistant Commissioner of Labour and controlling authority held that the respondent No. 1 was entitled to receive the amount of gratuity. The amount was so determined and notice thereof was given to the respondent No. 1 as well as to the petitioner. The ( 4 ) petitioner challenged the said order by filing an appeal which came to be dismissed.

#3. Heard learned counsel for the parties and learned AGP.

#4. The subsequent development is worthy of consideration. It is stated at the Bar that the respondent No. 1 was subsequently acquitted of the criminal charges. Needless to say, his reinstatement became final in view of such acquittal. It is important to note that on second occasion, his services were terminated because he was arrested in connection with the criminal case. The reinstatement was effected as per resolution No. 3. The respondent No. 1 was served with order of reinstatement dated 26th May, 1994. Needless to say, the respondent No. 1 was in regular service of the petitioner till the superannuation. Once it is noticed that he was reinstated by the petitioner, it goes without saying that his service was regularized. ( 5 ) The reinstatement order does not show that the question of payments like gratuity or other pensionary benefits were subject to any condition. The respondent No. 1 was entitled to claim the pensionary benefits like any other employee.

#5. Mr. Suryawanshi would submit that in view of section 4 (6) (a) of the Payment of Gratuity Act, 1972, the respondent No. 1 was not entitled to claim such benefit of gratuity because his acts constituted an offence involving morale turpitude. It is worthwhile to note that the services of the respondent No. 1 had not been terminated due to the alleged misconduct, involving morale turpitude, during course of the employment. The termination initially may be of such a nature and he could not have claimed the gratuity amount if such termination had been continued in effect. But, once he was reinstated by the cooperative society, without reservation of any right to deny the amount of gratuity or other pensionary benefits, his subsequent terminal ( 6 ) end of the services due to superannuation gave rise to the claim for gratuity and other benefits. In this view of the matter, both the authorities have rightly held that the amount of gratuity was payable to the respondent No. 1 as provided under section 4 (1) and (2) of the Payment of Gratuity Act, 1972. There is no apparent error committed by the authorities while allowing claim of the respondent No.1.

#6. For the reasons aforestated, I am of the opinion that there is no merit in the instant writ petition. However, the petitioner/Deputy Commissioner of Labour, Nashik is at liberty to release the amount of gratuity payable to the respondent No. 1, which is deposited before the Deputy Commissioner of Labour, Nashik, on completion of the necessary formalities as required under the rules and on submission of the no dues certificates by the respondent No. 1 from the concerned cooperative societies wherever he had worked. The writ petition is accordingly dismissed. ( 7 )

#7. In view of dismissal of the writ petition, civil application No. 1440/2009 does not survive and hence, stands dismissed. [ V.R. KINGAONKAR ] JUDGE NPJ/WP236-02